According to the Sunday Oshkosh Northwestern, the Oshkosh Common Council on Tuesday will have a private meeting with Five Rivers Resort President Tom Doig to discuss financing of the project. If that meeting takes place, it will be illegal.
Wisconsin's Open Meetings Law for governmental bodies allows only a few exemptions. The Oshkosh Common Council on Tuesday plans to go into closed session according to this exemption identified in the law:
19.85(1)(e) Deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.
The important language is "whenever competitive or bargaining reasons require a closed session." In the case of Five Rivers, the competitive and bargaining season is over. For better or worse, Five Rivers won the competition; the city has already bargained with Mr. Doig. Indeed, Mr. Doig has already booked two conventions for 2008. At this point he only needs to show that he has the financial backing necessary to make the project happen. This is not the proper topic for a closed session according to the plain language of the statutes.
I must remind each member of the Common Council that they are sworn to uphold the laws of the state of Wisconsin. If they go into closed session they will be breaking the law. Contact the members of the Council and urge them to have their discussion with Mr. Doig in public.
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Attorney General Lautenschlager in 2003 released an Open Meeting Law "Compliance Guide" which says this about legal ramifications of breaking the open meetings law:
"Any member of a governmental body who 'knowingly' attends a meeting held in violation of the open
meetings law, or otherwise violates the law, is subject to a forfeiture of between $25 and $300 for each violation. Wis. Stat. § 19.96. Any forfeiture obtained in an action brought by the district attorney is awarded to the county. Wis. Stat. § 19.97(1). Any forfeiture obtained in an action brought by the Attorney General or a private citizen is awarded to the state. Wis. Stat. § 19.97(1), (2) and (4).
The Wisconsin Supreme Court has defined 'knowingly' as not only positive knowledge of the illegality of a meeting, but also awareness of the high probability of the meeting’s illegality or conscious avoidance or awareness of the illegality. Swanson, 92 Wis. 2d at 319. The court also held that knowledge is not required to impose forfeitures on an individual for violating the open meetings law by means other than attending a meeting held in violation of the law. Examples of 'other violations' are failing to give the required public notice of a meeting or failing to follow the procedure for closing a session. Swanson, 92 Wis. 2d at 3 . . . In addition to the forfeiture penalty, Wis. Stat. § 19.97(3) provides that a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action.
The compliance guide also says this about the exemption statute according to which the Oshkosh Common Council plans to go into closed session:
"Governmental officials must keep in mind, however, that this exemption applies only when 'competitive or bargaining reasons require a closed session.' Wis. Stat. § 19.85(1)(e). The exemption is restrictive rather than expansive. Mere inconvenience, delay, embarrassment, frustration or even speculation as to the probability of success would be an insufficient basis to close a meeting.
"By using the word 'require,' the Legislature placed a strong burden on a governmental body considering whether to close a meeting."
It seems very clear that "embarrassment" and "frustration" are two very key motives at work in the Common Council's desire to go into closed session with Mr. Doig. Thank you for writing to them. Let's hope they take their responsibilities seriously and uphold the spirit and letter of the law.
Oh, and the compliance guide can be found here:
http://www.doj.state.wi.us/dls/
docs/op_rec.pdf
Well Perry, now that you've made your case I rest mine.
Know what I'm sayin'?
I think ya do.
I am sure city staff will say "it is just an opinion".
If the law allows for the Common Council to meet in closed session under the conditions described in the newspaper, then as Charles Dickens' Mr. Bumble said, "The law is an ass."
(And of course the fact of the matter is that the law does NOT allow for the Council to meet in closed session under the conditions described. Probably the best course of action to take would be for a group of citizens to show up at the closed meeting room and demand to be let in.).
I would like to be one of those.
me too!
Pat Gentile asked me to put her name here too. She would like to crash the illegal closed door meeting.
We will all be there in spirit!
Maybe now that Lennon is running for judge, he'd be willing to do his job if he feels the law is not being followed!
Exactly why can't this Q&A be done during the open meeting??
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